Callwood v. Dave & Buster's, Inc., No. CIV. AMD 98-1441.

Citation98 F.Supp.2d 694
Decision Date07 June 2000
Docket NumberNo. CIV. AMD 98-1441.,No. CIV. AMD 98-887.
PartiesA. Kathryn CALLWOOD, et al., Plaintiffs, v. DAVE & BUSTER'S, INC., et al., Defendants. Lisa M. Gilbert, et al., Plaintiffs, v. Dave & Buster's Inc., et al., Defendants.
CourtU.S. District Court — District of Maryland

Curtis J. Karpel, Silver Spring, MD, for Plaintiffs.

Arthur F. Fergenson, Ballard, Spahr, et al., Baltimore, MD, Maureen M. Rayborn, Ballard, Spahr, et al., Philadelphia, PA, Gayle B. Stein, Ballard Spahr Andrews & Ingersoll PH, Philadelphia, PA, for Defendants.


DAVIS, District Judge.


The plaintiffs in these cases, transferred to this court from the United States District Court for the District of Columbia where they were instituted, are two unrelated groups of African-Americans. The first group consists of eight members (collectively, the "Callwoods");1 the second group consists of eleven members (collectively, the "Gilberts").2 The defendant, Dave & Buster's, Inc., is a Missouri corporation which operates an eating, drinking, arcade-game and entertainment complex in Bethesda, Maryland (hereafter, "the restaurant").3

Several of the adult members of each of the plaintiff groups, the Callwoods during a May 24, 1997, visit, and the Gilberts during an April 20, 1997, visit, experienced what they perceived as extraordinarily discourteous and hostile treatment from the staff and management of the restaurant (the Callwoods were eventually ejected from the restaurant before they ordered their meals), which they attribute to racial animus on the part of defendant's employees.4 Thus, the Callwoods and the Gilberts have asserted claims under 42 U.S.C. § 1981 and Title II of the Civil Rights Act of 1964, 42 U.S.C. § 2000a-3. Jurisdiction exists under 28 U.S.C. §§ 1331 and 1343. The cases were consolidated for discovery, which has concluded. Now pending are defendant's motions for summary judgment. The parties have fully briefed the issues presented and no hearing is deemed necessary. For the reasons set forth below, I shall deny the motion with respect to the Callwoods' claims and grant the motion as to the claims asserted by the Gilberts.


Pursuant to Fed.R.Civ.P. 56(c), summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is material for purposes of summary judgment, if when applied to the substantive law, it affects the outcome of the litigation. See id. at 248, 106 S.Ct. 2505. Summary judgment is also appropriate when a party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

A party opposing a properly supported motion for summary judgment bears the burden of establishing the existence of a genuine issue of material fact. See Anderson, 477 U.S. at 248-49, 106 S.Ct. 2505. "When a motion for summary judgment is made and supported as provided in [Rule 56], an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavit or as otherwise provided in [Rule 56] must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); Celotex Corp., 477 U.S. at 324, 106 S.Ct. 2548; Anderson, 477 U.S. at 252, 106 S.Ct. 2505; Shealy v. Winston, 929 F.2d 1009, 1012 (4th Cir.1991). Of course, the facts, as well as the justifiable inferences to be drawn therefrom, must be viewed in the light most favorable to the nonmoving party. See Matsushita Elec. Indust. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The court, however, has an affirmative obligation to prevent factually unsupported claims and defenses from proceeding to trial. See Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir.1987).

Defendant seems to contend that the Fourth Circuit's decision in Wyatt v. Security Inn Food & Beverage, 819 F.2d 69 (4th Cir.1987), imposes in section 1981 and Title II cases a greater burden of production on nonmovant-plaintiffs — a showing of "substantial evidence" — than is otherwise required at the summary judgment stage. Plaintiffs have seemingly accepted this reading of Wyatt and have argued that they have presented "substantial evidence" of defendant's discriminatory intent. To the extent the parties have assumed that Wyatt imposes on nonmovant-plaintiffs a burden of producing "substantial evidence" at the summary judgment stage, I shall clarify.

In Wyatt, as here, the nonmovant-plaintiffs asserted claims under 42 U.S.C. §§ 1981 and 2000a against a hotel lounge. The Fourth Circuit reviewed the trial court's denial of the defendant's motion, made pursuant to Fed.R.Civ.P. 50, for a judgment as a matter of law (formerly, "judgment n.o.v.," see Fed.R.Civ.P. 50 (advisory committee note on 1991 amendment, subsection (a))). The Court ultimately concluded that the plaintiffs had offered "at least five kinds of `substantial evidence' to support their claim" and that the motion for judgment as a matter of law was properly denied. Wyatt, 819 F.2d at 70. Apparently, Dave & Buster's derives the notion that the Callwoods and the Gilberts are required at this stage to present "substantial evidence" in support of their claims from the Fourth Circuit's reference to "substantial evidence" and its subsequent analysis. This view of the burden of production required of nonmovant-plaintiffs at the summary judgment stage is potentially misleading.

It is well settled that the standard for granting summary judgment under Rule 56 "mirrors" the standard for a judgment as a matter of law under Rule 50. See Anderson, 477 U.S. at 250, 106 S.Ct. 2505; Celotex, 477 U.S. at 323, 106 S.Ct. 2548. At the summary judgment stage, an issue supported by evidence produced by the nonmovant plaintiff "such that a reasonable jury could return a verdict" in its favor is deemed to be "genuine." Anderson, 477 U.S. at 248, 106 S.Ct. 2505. The conclusion that an issue is genuine (and material) warrants the denial of a defendant's motion for summary judgment under Rule 56. See id. at 250-51, 106 S.Ct. 2505; Fed.R.Civ.P. 56.

Similarly, a jury verdict which is supported by evidence of "such quality and weight that reasonable and fair minded [persons] in the exercise of impartial judgment could reasonably" accept, Martin v. Cavalier Hotel Corp., 48 F.3d 1343, 1350 (4th Cir.1995) (quoting Wyatt v. Interstate & Ocean Transport Co., 623 F.2d 888, 891 (4th Cir.1980) (defining "substantial evidence" for purposes of Rule 56)), is deemed to be supported by "substantial evidence." Just as the conclusion that an issue is "genuine" warrants the denial of a motion for summary judgment, the conclusion that a verdict relating to an issue is supported by "substantial evidence" warrants the denial of a defendant's motion for judgment as a matter of law.

As the Supreme Court explained, the primary difference between Rule 56 and 50 is procedural. See Anderson, 477 U.S. at 251, 106 S.Ct. 2505. It explained further though, that "[i]n essence ... the inquiry under each is the same: whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251-52, 106 S.Ct. 2505.

Thus, it may be a fair statement to say that an issue is "genuine" for purposes of summary judgment under Rule 56 when it is supported by the same quantum of evidence that would support a conclusion, in ruling on a motion for judgment as a matter of law under Rule 50, that a verdict on an issue is supported by "substantial evidence." However, to the extent that the use of the term "substantial evidence" to characterize a nonmovant-plaintiff's burden at the summary judgment stage suggests a greater burden for nonmovant-plaintiffs than is otherwise required by Rule 56, that suggestion misstates the actual standard for this stage of the proceedings: that in order to survive a motion for summary judgment the nonmovant-plaintiff must produce evidence sufficient to demonstrate the existence of a genuine issue of material fact for trial, that is, must demonstrate a disagreement about a material fact supported by evidence "such that a reasonable jury could return a verdict" in his favor. Anderson, 477 U.S. at 248, 106 S.Ct. 2505. I will proceed with this understanding.


As might be imagined, there are considerable factual disputes between the plaintiffs, respectively, and the employees of the defendant as to the nature of, and the underlying motivations for, the interactions which occurred during the plaintiffs' visits. Moreover, the parties disagree strongly over which of those factual disputes are material to the case. I shall provide here a summary of the facts in the light most favorable to the plaintiffs. Additional facts shall be described in the analysis of the plaintiffs' claims.

A. The Callwood Case

The claims of the Callwoods focus primarily upon their unpleasant interactions with Deborah Countryman ("Countryman"), the waitperson assigned to service patrons in the area of the restaurant in which the Callwood party took seats upon their arrival at the restaurant, and her manager, Adam Smith ("Smith"). Ultimately, as described below, the Callwoods were ejected from the restaurant by security personnel at Smith's direction.

Viewing the evidence in the light most favorable to the Callwoods, the relevant facts may be summarized as follows. On Saturday, May 24, 1997, at...

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